Assessing The Novel Eu Council Guidelines On Liberty Of Appear - Online Too Offline

Professor Lorna Woods, University of Essex; co-author, Steiner in addition to Woods, EU Law 

Yesterday the Council of the European Union adopted guidelines on liberty of expression.  As these guidelines were adopted past times the Foreign Affairs Council, it is non surprising that they are aimed at implementation inside the Union’s Common Foreign in addition to Security Policy, similar the ten previous guidelines on issues such every bit torture, the decease penalization in addition to human rights defenders.  So, patch the guidelines are ‘guided’ past times the European Union Charter, every bit good every bit whatever relevant European Union treaty provisions, the principal sources referred to are the provisions inward the United Nations’ International Covenant on Civil in addition to Political Rights (ICCPR) as good every bit the United Nations Human Rights Committee’s General Comment 34 on Freedom of Expression.  The listing of sources contained inward the Annex is far wider, however. It is also worthwhile noting that at that topographic point is some discrepancy betwixt what the European Union asks of others – peculiarly would survive Member States via the Copenhagen criteria applied to planned accession candidates – in addition to the recent do of its ain Member States (whether that survive Republic of Hungary or the United Kingdom).

The Guidelines follow what mightiness survive termed a touchstone human rights approach to liberty of expression: that is, that liberty of human face should survive interpreted broadly in addition to exceptions narrowly (referring to the listing of possible exceptions prepare out inward Article 19(3) ICCPR every bit good every bit Article 20(2) ICCPR, on loathe speech) in addition to dependent land to the tests of legality, necessity in addition to proportionality.  In explaining the significance of liberty of speech, the Guidelines scream to the significance of that liberty (especially that of the media) inward democracy, but they also scream to the human element: that speech communication is of import for self-fulfilment in addition to autonomy, including the evolution of one’s identity inward society, in addition to non but instrumentally inward the search for ‘truth’ or the ‘right’ political respond – of import though that may be. Having said that, much of the specific points relate to the purpose of journalism in addition to the media, amongst the underpinning assumptions almost the purpose of the media every bit watchdog of those inward power. 

The guidelines also Federal Reserve annotation the horizontal nature of liberty of human face – peculiarly relevant inward the context of the Internet in addition to social media, when human face is non but almost world institutions in addition to the media speaking to a passive audience (which was the model for much of the previous instance law) but also the correct of individuals to utter to i some other in addition to to have each others’ views. This signal has been given a higher profile inward the approach of the Inter-American Court of Human Rights than traditionally has been the instance inward relation to Article 10 ECHR in addition to Article nineteen ICCPR. Despite this emphasis, at that topographic point is recognition of the both the human relationship betwixt privacy in addition to liberty of human face in addition to the tension betwixt them. Interestingly, inward this document the quondam aspect – through consideration of the conduct on of surveillance on speech communication - may have got a higher profile than the latter.

The guidelines seat some areas of priority action, in addition to inward some respects these areas of activity are no surprise, starting amongst the demand to goal the impunity of those who have got activity against individuals for exercising their correct of liberty of human face – notably journalists in addition to media workers. In add-on to condemning such actions, the European Union volition land telephone telephone on the relevant seat down actors to have got activity against such threats of violence every bit good every bit violence itself.  If the European Union does have got action, it may supply incentives for some governments to have got Federal Reserve annotation of the UN General Assembly resolution on the subject, every bit good every bit the Action Plan to goal impunity. In the tools section, the guidelines provide:

Abusive restrictions on liberty of human face in addition to violence against journalists in addition to other media actors should survive taken into trace of piece of job concern human relationship past times the European Union when deciding on possible interruption of cooperation, notably every bit regards fiscal assistance.

This is a proposal that some involved inward the have against impunity have got been suggesting for some time.  How it industrial plant inward do remains to survive seen.

The Guidelines seat the demand to ensure that laws are non used to suppress liberty of expression, in addition to that media rule is appropriate to ensuring liberty of expression. Note that some of the points inward this department instruct farther than the regulatory seat required of the Member States of the EU, specifically every bit regard the independence of regulatory bodies. While the EU’s communications packet in addition to the information protection regime appear that at that topographic point survive independent regulatory bodies, at that topographic point is no such provision inward the Audiovisual Media Services Directive, in addition to at that topographic point is picayune transparency of media ownership – both to survive encouraged according to these guidelines.

The Guidelines also Federal Reserve annotation the importance of liberty of human face inward cyberspace, in addition to inward particular focus on the demand to ensure non –discriminatory access to the Internet – though at that topographic point is less particular on what this truly way beyond back upward for the multistakeholder model of Internet Governance – every bit prepare out past times European Union strategies, rather than those identified inward the Internet Governance Forum or Netmundial, although engagement amongst these is envisaged inward the tools for action. The Guidelines produce Federal Reserve annotation the purpose of private companies, in addition to prepare out best do guidelines reflecting dorsum the United Nations Guiding Principles on Business in addition to Human Rights, as understood through the European Union guidance Federal Reserve annotation for ICT companies on trace of piece of job concern in addition to human rights.

The starting fourth dimension activity point, however, is ‘action at the international degree to prepare best practices in addition to honor for human rights amongst regard to the export of technologies that could survive used for surveillance or censorship past times authoritarian regimes’.  The seat every bit regards the US of America is non addressed. The significance of the demand to protect against excessive surveillance is, however, repeated in addition to its adverse consequence of liberty of human face noted.  Thus the guidelines specify that European Union activity volition include the advertisement of ‘the telephone commutation of practiced practices to ensure that the legislation in addition to procedures of States regarding the surveillance of communications in addition to the interception in addition to collection of personal information are based on the dominion of law, dependent land to independent, effective in addition to domestic oversight mechanisms in addition to uphold obligations nether international human rights law, including the principles of proportionality in addition to necessity’, something which some Member States may demand to recollect about.  The telephone telephone to comply amongst Council Common Position 2008/944/CFSP on exports of specified military machine engineering does non add together much, but the tilt that ‘the European Union volition ensure a structured in addition to consistent approach to export controls of surely sensitive information in addition to ICT items’ is potentially far reaching, though what is envisaged past times this tilt is unclear. Is at that topographic point a concern almost mobile engineering that has had dorsum doors engineered into it (at the asking of surely Western governments) for example? The side past times side judgement refers yet to specific surveillance/censorship technology, suggesting a far narrower land of concern.

Finally, the Guidelines incorporate plans for evaluation, specifically envisaging a study inward 3 years’ time. While some aspects may demo signs of plumbing equipment inward amongst global concerns – such every bit the concerns almost the violence against journalists instantly high on the UN’s agenda or the global revulsion at volume surveillance, it remains difficult for the European Union successfully to preach surely behaviours when its ain Member States have got at best a patchy tape inward these areas.


Barnard & Peers: chapter 9, chapter 24

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